By John Tingle
The clinical negligence system reform debate in England is proceeding at some pace now with the House of Commons Health and Social Care Select Committee recently receiving expert oral evidence.
The evidence has produced some excellent and controversial food for thought along with creating an important change agenda.
One area of controversy: whether clinical negligence lawyers are thwarting reform because of their financial interest in the status quo.
In the Law Society Gazette, John Hyde writes, “Former health secretary Jeremy Hunt has questioned whether clinical negligence lawyers are blocking vital reforms because the status quo is too lucrative to change.”
Referring to the transcripts of oral evidence to the Committee, Hunt’s question was answered with a a resounding “no” from Guy Forster, who represented the Association of Personal Injury Lawyers (APIL):
Jeremy Hunt stated:
“Guy, can I ask you the difficult question that has to be asked? Last year, £2.2 billion was paid by the NHS. There is a huge industry of clinical negligence lawyers. I think getting on for half that amount was legal fees. Is there self-interest in the legal profession that makes you want to resist change?”
Guy Forster replied:
“Absolutely not. As I say, it is important to remember that behind these large figures we are talking about people who were harmed, at the end of the day. When you look at the process, it is not the case that everybody needs to go to court to receive redress because, actually, three quarters of those who receive damages in some way will receive them without the need for proceedings at all.”
Important questions and answers
These are important questions and answers which strike at the very heart of our clinical negligence reform debate in England. The high costs of the clinical negligence system are a drain on National Health Service (NHS) scarce resources. But, at the same time, we should not forget the patient’s perspective and position.
We should not unjustly compromise a claimant patient’s right to receive compensation for avoidable harm suffered. Sadly, they have been harmed by those who were meant to care for them. Our tort system is designed to place them, as far as money can do this, in the position they were in before the harm occurred. Money is a poor compensator, in any event, for the loss of a faculty, amenity, serious harm, and even death.
The oral evidence given by the expert witnesses to the Committee provides an excellent detailed analysis into the advantages and disadvantages of our clinical negligence tort-based compensation system and how we could fine tune it or even replace it.
No quick fixes
It is clear from the expert evidence provided that there are no quick fixes to the issues raised, no easy solutions. Additionally, the transcripts of expert oral evidence show that the clinical negligence system cannot be separated from the context of NHS care delivery, they are both intrinsically linked. Problems have long been identified with our complaints system: how health care providers talk to patients, a defensive NHS culture, patients forced to resort to litigation in order to find answers. Other long-identified NHS failings include NHS staff failing to learn from the errors of the past and changing practices. These are all addressed in the evidence given.
The House of Lords Library
Charley Coleman for the House of Lords Library has produced an excellent publication which captures well the key issues in the clinical negligence reform debate and gives helpful facts and figures. The topics discussed in the guide are:
- Managing compensation in the NHS in England
- Costs of compensation
- Addressing the cost of compensation
- Government position
- House of Commons Health and Social Care Committee: NHS litigation inquiry
Recommended further reading
Also recommended for further reading on this topic is the research report commissioned by APIL (Association of Personal Injury Lawyers) from Opinium Research which provides some fresh valuable perspectives on our clinical negligence reform debate. A particular focus is given to the patients experience of clinical negligence and how we should factor them in more as stakeholders in reform discussions. For too long the focus of the debate has been on money — we need to factor in patients more.
We are all eagerly awaiting the Government’s next steps in clinical negligence system reform, which should hopefully become clear this year.